Book Symposium Investment Law: “Investment Lawyers are from Mars, Human Rights Lawyers are from Venus” – Comments on Hirsch

by Andreas Ziegler

[Andreas Ziegler is Professor at the University of Lausanne and Counsel at Blum & Grob Attorneys-at-law in Zurich.]

The reference to John Gray’s bestselling “Men Are from Mars, Women Are from Venus” which states that most of common relationship problems between men and women are a result of fundamental psychological differences between the genders certainly oversimplifies Moshe Hirsch’s argument in his Chapter. And yet a recurring idea in his contribution is that human rights lawyers refer differently to human rights treaties than investment lawyers because of their socialization. What he describes as the sociological perspective can be summed as the explanation of these different attitudes by the different career paths of those involved in investment cases and those involved in human rights cases. He holds “[w]hile most human rights lawyers work in legal divisions of NGOs of academia, foreign investment lawyers (and arbitrators) are predominantly senior lawyers/practitioners, legal scholars of former judges affiliated with major international firms.” (p. 90 in fine).

This is not the only argument in his contribution but I would like to focus on it as I find it particularly intriguing and worthwhile to be developed in more detail. There is certainly some truth in this statement. When it comes to the application of investment treaties we are traditionally confronted with lawyers who take a certain interest in the global economy and especially the role of investors (normally multinational enterprises). These were for a long time mostly civil servants negotiating such treaties and (national) business associations interested in the conclusion of such treaties with specific partner countries. More recently when these treaties (or chapters thereof – most prominently Chapter 11 NAFTA) were discovered for their practical use by practicing lawyers we got used to their arguments being heard by investment tribunals.

When it comes, however, to the arbitrators one must say that originally and still to a large extent today we see small group of specialists in international commercial arbitration being appointed to the respective arbitration tribunals. But there is an increasing number of arbitrators being appointed who are not specialized in international commercial law but come from public international law – not only international economic law. Some may remember the very early appointment of René-Jean Dupuy as sole arbitrator in Texaco Overseas Petroleum Company and California Asiatic Oil Company v. The Government of the Libyan Arab Republic (1977). It is certainly still true that it is more often the State appointing a specialist in public international law than the investor involved in a case. This is not surprising as the investor is focusing on his individual commercial interests and the State often invokes some public policy concern or constraint for his action. Also commercial law firms actively search for appointment by multinational firms and have traditional links to commercial lawyers they have worked with in the past. Yet, one can no longer claim that there would not be an increasing number of arbitrators appointed who do not have a commercial arbitration background. Among the academics being appointed there is an increasing number of academics who have a broader view of the applicable law and are open to consider the relevance of human rights treaties or other norms of public international law that should be taken into account when settling a dispute. This is also true for the other participants in the proceedings where Parties have normally the possibility to involve experts from other fields and NGOs are increasingly making contributions – be it officially in amicus curiae briefs or using the public domain. The same is obviously true for academia where non-investment specialists have only recently discovered the relevance of investor-State arbitral awards but now contribute considerably to the debate on how investment treaties should be interpreted- and more importantly negotiated in the future. (see my forthcoming volume “Towards Better BITs”)

A particularly interesting situation results from the case law of tribunals when their character as a human rights or an investment tribunal is not so clear. Moshe Hirsch refers in his contribution to the South African Development (SADC) Tribunal which in a very interesting decision (Campbell v. Zimbabwe) in 2008 referred only to human rights in order to find a violation of Zimbabwe’s Governments expropriation measures against white famers. In principle this court is a general court for the settlement of disputes under the applicable treaties among SADC Members – thereby imitating the model of the Court of Justice of the European Union. A particular feature is that it allows individuals to bring cases under certain circumstances. What was so special in the mentioned decision is that the tribunal had to address the issue of expropriation without being able to apply the rules on foreign direct investment (FDI) that have been negotiated in the meantime among SADC members. In the absence of such applicable rules the tribunal used the general reference to human rights in the treaty and thereby considered the measures a discriminatory (based on race) and a violation of the right of access to justice. These rules could also have been found in the respective rules on FDI among SADC members – had they been applicable. Sadly enough this decision led also to the suspension of the tribunal by SADC members in 2010 and 2011. Similar decisions result from the European Court of Human Rights’ case law regarding investment measures – the Court can only apply the European Convention on Human Rights (ECHR) and the applicable protocols (most importantly the first one including the right to peaceful enjoyment of property). Here the applied norms are normally referred to as human rights norms while in the framework of investment treaties similar concepts are considered of an economic nature. (see here)

In conclusion I would agree with Moshe Hirsch that traditionally the judges and arbitrators appointed to human rights courts and investment tribunals come from very different areas of law and that this influences their legal thinking and use of human rights treaties. At the same time, I think there are more and more overlaps between those epistemic communities. Human rights treaties and investment treaties are not from different planets but they are part of the same legal order. While many arbitrators (but also judges on human rights courts) may shy away from looking at rules outside their specialization it is much more often the question of the applicable rules in a case that makes it different to combine the rationale of these treaties. In this respect the fragmentation of the legal order is more constraining than the capability and willingness to apply human rights treaties and/or to interpret investment treaties in the light of other applicable rules. This being said it is important to train lawyers and to appoint judges and arbitrators who are able to understand treaties from various specific areas of law – it is no longer acceptable that lawyers focus on their area of expertise and thereby come to wrong decisions because they are incapable or unwilling to look beyond their narrow area of expertise.

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